Flawed voting procedure on condo board
Q. We belong to a Common Interest Community Association. The board of directors of our association consists of three employees of the developer; we are still under developer control. During each of the two quarterly meetings held so far this year, the board did not vote on any of the issues being considered. Rather, a board member just made a motion and it was seconded by another board member. Then they moved on to the next issue, without taking any vote. The board thinks the motions were approved. Is this lapse in actual voting permitted?
A. The voting procedure here is flawed, and no decision was made on the motions handled in this fashion. A motion must be made, seconded, discussed, and then voted on by the members of the board. A motion that is merely made and seconded, without a vote, is incomplete. The board needs to actually vote on motions. But none of the action purportedly taken by the board here, without a vote approving the motions that were merely made and seconded, is valid.
Q. I am a board member of a small condominium association that has been in existence for two years. We currently use a management company that deals with much larger associations, and we have had a problem moving forward with some important contracted services. My question is does the board need to meet in a formal meeting to seek a different management company more suited for a similar sized association, or can we do this in a workshop meeting?
A. Closed workshops attended by a quorum of the board are currently not permitted. The board must address the issue of changing the management company at a meeting of the board, with proper notice. Note that the discussion on this issue can take place in a portion of the board meeting closed to the unit owners. However, the actual vote on the issue of changing the management company must be made at a board meeting that is open to the owners. The board needs to confirm that it can change management companies without being in breach of the current management contract.
Q. My husband and I own a quad home that is part of a condominium association. A concrete patio serves our unit and a neighboring unit, and is divided by a privacy fence. Approximately 15 years ago, a tree fell on the privacy fence and the association replaced the privacy fence. At the time the association didn't paint the fence, and since that time the fence has weathered to a gray color. Last month, we received a notice from the association stating that we need to make repairs to the fence and paint it. Are we responsible for making repairs to the privacy fence that separates the two patios?
A. It depends. The privacy fence might be a limited common element. If so, and if the condominium declaration provides, the owner or owners served by the privacy fence could be responsible for the cost of its maintenance, repair, and replacement. Or, the declaration might actually require the owners to perform the work. A careful review of the declaration is required here to determine if the fence is a limited common element, and as to who is responsible for its maintenance and for payment for such maintenance.
The prior damage to the fence caused by the tree might have been covered by the association's property insurance. This could explain why the replacement of the fence at that time was done by the association.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.